Submission to FWA Inquiry - April 2013 - Civil Contractors Federation

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We do not put a position as to whether this is a satisfactory definition but rather make the point that Work, Health and Safety is not harmonised and even in states where they have moved to harmonisation there remain a number of differences particularly in state discrimination legislation. Whilst there is much merit in working towards a harmonised definition, in the short term any new definition in a Federal Act, in addition to state and territory legislation has the potential to lead to confusion, complexity and possible forum shopping by complainants. We also note that the provisions are very broad in nature as to who can bring an action as it includes “an employee, a contractor, a sub-contractor, an outworker, an apprentice, a trainee, a student gaining work experience or a volunteer” 10 . From an employer perspective bullying is also not akin to or like dealing with a physical safety hazard where an employer can identify the hazard, measure it and put in place hazard minimisation. This very wide definition will raise very serious issues for employers. (ii) The employer’s right to direct how work is done Additionally, employers have a legal right to direct and control how work is done, and managers have a responsibility to monitor workflow, give feedback and manage performance. Because bullying has a subjective element it is most important that a differentiation is made between the legitimate exercise of workplace authority and bullying. We note that the Bill attempts to deal with this by introducing a concept of “reasonableness” in Section 789 FD (2) that is reasonable management action carried out in a reasonable manner would not constitute bullying behaviour. However, once again we are concerned that there is the potential to expose employers to frivolous and vexatious claims especially if the employer is in the process of performance management of staff. (iii) The need for certainty and the issue of cyber-bullying From an employer perspective bullying as noted previously, is also not akin to or like dealing with a physical safety hazard where an employer can identify the hazard, measure it and put in place hazard minimisation. Bullying has a clear psychological component and the rise in cyber-bullying is almost entirely focused on this aspect. 10 Section 789 FC (2) but noting that Volunteer organisations are excluded through FWA Section 5 (7) 15
Recently in commenting on the Federal Government move to harmonise Anti-Discrimination laws we raised a strong concern about the use of social media by employees outside of the employers control. 11 It is entirely foreseeable that an employer will be made party to an action for a bullying claim by one employee against another employee on Facebook or through twitter. There is now at least one court case where an employer has dismissed an employee over comments made about the workplace on social media only to be taken to Fair Work Australia and for the employee to be re-instated. In Glen Stusel v Linfox 12 Mr Stusel brought proceedings pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the alleged unfair termination of his employment by Linfox Australia Pty Ltd. Particularly it was alleged by the company that: “ “1. on your Facebook profile page, which was open to the public, you made a number of statements about one of your managers, Mr X 13 , that amounted to racially derogatory remarks; 2. on your Facebook profile page, which was open to the public, you made a statement about one of your managers, Ms Y, which amounted to sexual discrimination and harassment; and 3. you made extremely derogatory comments about your managers, Mr X and Ms Y 14 .” In these circumstances the company terminated his employment stating that: “the above conduct is extremely serious, and Linfox cannot in any way condone or fail to deal with these matters appropriately.” Ultimately Commissioner Roberts found in favour of Mr Stusel noting amongst other matters that the company did not have a social media policy. “At the time of Mr Stusel’s dismissal, Linfox did not have any policy relating to the use of social media by its employees. Indeed, even by the time of the hearing, it still did not have 11 See our Submission No 307 at http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=legcon_ctte/complete d_inquiries/2010-13/anti_discrimination_2012/submissions.htm 12 Glen Stusel v Linfox [2011] FWA 8444 13 The names of the co-workers appear in the judgement 14 The names of the co-workers appear in the judgment 16
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Submission to FWA Inquiry - April 2013 - Civil Contractors Federation

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